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THE 





TLAWRY OF A RACE. 






SPEECH OF HON.. ELLIOTT ANTHONY , Delegate from 
( Chicago ), Cook Co., delivered in the Constitutional Convention 
of Illinois , February 12, 1862, on the proposition To forever 
prolnbit negroes or mulattoes from migrating into or set¬ 
tling in the State. 

The proposed amendment to the New Constitution in these words: 

Sec. 1. No negro or mulatto shall migrate to, or settle in this 
State, after the adoption of this Constitution—being under con¬ 
sideration. 

Mr. Anthony addressed the Convention as follows: 

Mr. President : 

I am opposed to the first section of the proposed substitute of 
the gentleman from Shelby, because I regard it as an infringment 
of the natural rights of man. The right of migrating and of lo¬ 
comotion is derived from God himself. The right of a man to be 
a man—black or white—the right to himself cannot be extinguish¬ 
ed by laws or constitutions. The instinct of the savage teaches 
him to revolt at the idea of restraint in the exercise of his natural 
rights—and human nature bids defiance to the fetters which would 
bind him to a single portion of the earth. The freedom of the 
races was years ago proclaimed on this continent, and every attempt 
to fetter and enslave, whether by acts or servitude or otherwise, 
must be regarded as utterly antagonistic to the whole theory of our 
government as founded by our fathers. 

“ It was heard in the wild whoop of the American savage ages, 
before Columbus’ keels plowed the bosom of the Atlantic. It rung 
from the clashing shields of the northmen, when the ancestors of 
Lock and Sidney were painted savages, performing Druid worship 
and under Druid government in Britain. It was uttered in the 
orations and songs of early Greece, and practiced in the better pe¬ 
riods of its “ fierce democracies.” 

There are those who can draw it foom the Sermon on the Mount, 
and centuries earlier from the Decalogue. Did ever a human being 
in the shape of a man stand upright with “ heaven erected face,” not 
wholly perverted by ignorance or false education, and not feel it as 
instinctively as his right to breathe the air and receive the sunshine 



( 2 ) 


E 



?3 

f 


Th At? 


of heaven ?” Why, sir, the right of migration and of settlement 
belongs to beasts—it is the natural right of dogs. When men or 
beasts commit crimes it is then time that they should be punished— 
but to attemp to wall up a State—and to exclude a whole race from 
commerce or intercourse, either to give to that race the benefits of 
the arts and sciences and all improvements, is a policy emulated 
only by the Japanese, and is only worthy of Japan. 

“ The fundamental source of all your errors, sophisms and false 
reasonings/’ said Alexander Hamilton, u is a total ignorance of the 
natural rights of mankind. Were you once to become acquainted 
with these, you could never entertain a thought that all men 
are not by nature entitled to equal privileges. You would be con¬ 
vinced that natural liberty is the gift of the beneficent Creator \o 
the whole human race ; and that civil liberty is founded on that.” 

This section excludes the negro race from all civil, political and 
social intercourse with the white race—they are banished men in 
their native land—that constitutes them outlaws. 

-Satis est leoniprostrasse —is it not sufficient for the lion to have 
conquered ? 

I regard this section as a plain and palpable violation of the fun¬ 
damental principles of civil liberty, and of the sacred compact con¬ 
tained in that great magna charter of this northwest territory, call- 
ed the ordinances of 1787, which provides as follows: 

“ Sec. 13. And for extending the fundamental principles of 
civil and religious liberty, which form the basis whereon these re¬ 
publics, their laws and constitution are erected, , to fix and establish 
those principles as the basis of all . laws,, constitutions and govern¬ 
ments, which forever hereafter shall be found in the said territory; 
to provide, also, for the establishment of States and permanent 
government therein, and for their admission to a share in the feder¬ 
al councils on an equal footing with the original States, at as early 
peridds as may be consistent with the general interest. 

“ Sec. 14. It is hereby ordained and declared by the authori¬ 
ties aforesaid, that the following articles shall be considered as 
articles of compact between the original States and the people and 
States in the said territory, and forever remain unalterable, unless 
by common consent, to wit: 

ARTICLE II. 

“ The inhabitants of the said territory shall always be entitled 
to the benefits of the writs of habeas corpus, and of the trial by 
jury; of a proportionate representation of the people in the legis¬ 
lature, and of judicial proceedings according to the course of the 
common law ; all persons shall be bailable, unless for capital offen¬ 
ces, where the proof shall be evident or the presumption «reat • all 
fines shall be moderate, and no cruel or unusual punishment shall 
be inflicted. No man shall be deprived of his liberty or property 
but by the judgment of his peers or the law of the land, and should 
the public exigencies make it necessary, for the common preserva- 

\ {J / r \ 1) /tv ) 


tion, take any person and property, or to demand his particular ser¬ 
vices, full compensation shall be made for the same. 

ARTICLE VI. 

“ There shall be neither slavery nor involuntary servitude in the 
said territory, otherwise than in the punishment of crimes, whereof 
the party shall have been duly convicted.” 

Are the provisions of this ordinance still binding upon us: are 
its principles worthy of our regard and should they be observed by 
the people of this State-? As early as 1828, Judge Lockwood in 
deciding the case of Phoebe, a woman of color, vs. Jay, Breese 272, 
says : “ Several of the States, in the formation of their constitutions, 
have ingrafted into them provisions relative to the right to hold 
persons in slavery without objection. The ordinance, however, is, 
no doubt, still binding upon the people of this State, unless it has 
been abrogated by ‘ common consent.’ By 1 common consent,’ I 
understand the United States, and the people of this State, and 
whenever they shall agree that the whole or any part of the ordi¬ 
nance of 1787 shall be repealed, it will, so far as it affects this 
State, become a dead letter. Now have the United States and the 
people of this State ever abrogated that ordinance ? If so, when 
and where did they do it ? 

Sir, that ordinance never has been abrogated, if we are to take 
the opinion of our courts, and I hold it stands the magna charta of 
our liberties. It is not confined in its application to white, red, 
or copper colored persons at all, but it ordains and declares, among 
other things, that no man shall be deprived of his liberty or prop¬ 
erty but by the judgment of his peers or the law of the land— 
which means trial by jury. Now, sir, under and by virtue of that 
ordinance, this State of Illinois was admitted into the Union in 
1818—and by article. 13 of that constitution it is provided: “That 
all men are born equally free and independent , and have certain in¬ 
herent and indefeasible rights, among which are those of enjoying 
and defending life and liberty, and of acquiring, possessing and 
protecting property and reputation, and of pursuing their own hap¬ 
piness.” 

“ Sec. 8. That no freeman shall be imprisoned or dis-seized of 
his freehold, liberties or privileges , or outlawed or exiled , or in any 
manner deprived of his life, liberty or property, but by the judg¬ 
ment of his peers or the law of the land.” 

Under this constitution, various cases have arisen involving the 
status of the negro race in this State, and from the beginning’to the 
end, the courts of this State have recognized the binding force of 
the ordinance of 1787 and the constitution of this State, and have 
always declared that no negro or mulatto could ever be held as a 
slave in this State, or have his rights impaired. 

In 1845, in the case of Jarrot vs. Jarrot, 2d Gilman, 11, Judge 
Scates said : “ After so many and such uniformity of judicial de- 


(4) 

terminations upon the meaning, and the application of the constitu¬ 
tion and ordinance to facts and circumstances like these before the 
court, made in so benignant a spirit of humanity and justice, I can¬ 
not allow my mind to doubt of the plaintiff’s ‘ inherent and inde¬ 
feasible’ rights to become ‘ equal , /ree, and independent ’ with 
other citizens ‘and of enjoying and defending life and liberty, and 
of acquiring, possessing, and protecting property and reputation, 
and of pursuing’ his ‘own happiness,’ except so far as he may, by 
the constitution and laws be restricted or denied the right of suf¬ 
frage. All philanthropists unite in deprecating the evils of slavery, 
and it affords me sincere pleasure when my duty under the consti¬ 
tution and laws requires me to break the fetters of the slave, and 
declare the captive free.” Now sir, this decision was made under 
the old constitution. In 1847 we framed the present constitution, 
but retained in it all of the above provisions I have quoted —and 
which are to-day the same as they were when Judge Scates decided 
the case of Jarrrot vs. Jarrot. 

It is in vain for men to point me to the Dred Scott decision and 
tell me that a negro is not a citizen of the United States—we are 
dealing with citizens of this State—and while I know that the su¬ 
preme court of the United States decided that the words of the 
Declaration of Independence did not include the African race, the 
same court said, expressly : “ The general words above quoted, 
would seem to embrace the whole human family,” and if they were 
used in a similar instrument at this day, would be so rendered. 

I hand to Chief Justice Taney, now, the present constitution of 
this State, and I ask him, or any other judge, if these words, to wit: 
‘‘ all men are born equal, free, and independent and have certain 
inherent and indefeasible rights,” &c., are not used in a “ similar 
instrument” and if it is not such an instrument as he meant—and 
if the words above quoted do not embrace the whole human fami¬ 
ly?—What do you think Judge Taney would say? What could he 
say? He could say nothing else in the world but that it was a 
“ similar instrument” and that it did “ include the whole human 
race.” 

Do gentlemen mean to contend that our bill of rights in our con¬ 
stitution does not include the negro ? Do you propose to alter that 
bill of rights so that it shall read “ that all men of pure Caucasian 
blood—that is, men of white complexion, straight hair, small heel 
bones, and blunt shins, are born equal, free, and independent, and 
have certain inherent and indefeasible rights,” &c. If gentlemen 
do mean that, why just put it into the constitution and let us un¬ 
derstand each other—no more quarreling over words ) just tell us 
exactly what you do mean and done with it. 

If you mean that the people of this State have the right to out¬ 
law a whole race, and to enact in the organic law a great wall 
around this State, why, just tell me how you can consistently do it, 
and retain those provisions in the constitution which declares “ That 


no freeman shall be imprisoned or dis-seized of his freehold, liber¬ 
ties, or privileges, or outlawed , or exiled, or in any manner deprived 
of his life, liberty , or property, but by the judgment of his peers, 
or the law of the land.” 

There is nothing in all history which furnishes a parallel except 
the expulsion of the Moors from 8pain. There they resorted to 
fire and sword—we may have to do it—but 1 warn you of the retri¬ 
bution of a Providence which watches over the weak and feeble, 
and will protect them from merciless cruelty and injustice. I look 
upon this as an attempt to use the sovereign power of this great 
free people of this great free State of Illinois, to crush out a weak, 
feeble, despised, down trodden and degraded race, who are guilty of 
no crime, except of being born black. It is an attempt to make 
the free people of the great State of Illinois hold the slaves of the 
south in bondage, while they abuse and oppress them. And finally, 
it is an attempt to use the free people of this State to perpetuate 
slavery, and to pervent those who would free their bondman from 
doing it ? Why should the sovereignty of this great free people be 
invoked to crush and put down the poor, helpless, yet despised, 
harmless negro race? What have they done that they should be 
thus treated ? Are negroes to-day in arms against this government? 
Are negroes to-day plotting treason ? Who brought them here ? 
How came they to darken our borders? A burning sun looks down 
upon their native wilds—six thousand miles away. God and soli¬ 
tude alone reigns in their homes—poor, weak, degraded creatures ! 
Seven dark, dismal centuries have passed over your benighted 
heads, and still the heel of the oppressor is upon your necks. Have 
not the freemen of Illinois another mission to perform than to outlaw 
and degrade the now already forsaken wanderer in this land ? Eighty 
thousand of the brave sons of Illinois are to-day fighting for liberty 
on a southern soil, and beneath a southern sky. The great battle 
of the ages is upon us, and yet we are plotting against the liberty 
of a race that has few advocates and few friends. 

Never, since mankind had a history, did the world behold such a 
spectacle as this. In the old world the last remains of feudalism 
are disappearing. The irresistible march of human progress goes 
like a procession over the wastes of Russia, and fourteen millions of 
serfs rise from their cabins and huts and stand erect, clothed 
with freedom. In Tunis, in Morocco, and even in Turkey, 
despots bow to the mandates of the people, and slavery disap¬ 
pears. Italy and Europe stand up in their manhood, and declare 
the eternal, interminable, and immortal rights of man, but we— 
what do we do ?—we are forging shackles for slaves ; we—we are 
making laws which would do credit to Draco and Caligula. As far 
as modern civilization throws its rays—as far as the Pharos of this 
Republic has sent its light—where can you behold such a specta¬ 
cle. Freemen of Illinois, has it come to this at last—are we to 


convert the southern States into prison States—are they to forrn 
the Bastile for the heathen and Ethiopian, and are the freemen of 
Illinois to act as turnkeys and keepers—and do the gentlemen on 
this floor propose to walk their rounds to see that no negro enters 
this paradise of ours ? Why should such a policy be urged upon 
our attention ? Why should long, dreary centuries of cruel wrong 
be continued? and why should we make it form a part of t\i& funda- 
mejital and organic law of our State ? Look at this great country of 
ours—cast your eyes up and down this great valley, and see if there is 
not room enough for all God’s creatures. Between the confluence of 
the Ohio and Mississippi and the Falls of St. Anthony—the States 
of Indiana, Illinois, Iowa, Kansas, Nebraska, Wisconsin, and Min¬ 
nesota, stretch out their free arms and call to the oppressed of every 
clime to come—and let no man, black or white, be afraid to come. 

The tree States of Indiana, Illinois, Iowa, Kansas, Nebraska, 
Wisconsin and Minnesota cover more ground and are capable of 
sustaining a larger population than England, Scotland, Ireland, 
Denmark, Belgium, France, Holland, and Portugal united. 

The arm which is to control this nation is here on these western 
plains, and the power which is to determine the question whether 
this land is to enjoy forever the blessings of liberty, civilization and 
Christianity, is now uplifted in the cause of humanity and liberty. 

Gentlemen, I believe that the right is always expedient. I do 
not believe that it is right to either outlaw or assassinate a race 
of human beings in this way. I do not believe that we should use 
the sovereign power of this State to smother black men any more 
than white men. I do not take this stand without due deliberation. 
Seven hundred years of outrage, calumny, and wrong has done its 
work. “ A tallen race cannot be raised in a day. These negroes 
must long be employed in the humble avocations of life. It is 
slavery, only, which debases and crushes the soul.” The poor, the 
weak, and the despised sons of Ham I would raise up. Christ him¬ 
self chose his apostles from among the fishermen and the sons of 
toil. I would to God that every one of them were to-day beyond 
the seas, in a land where we could send missionaries to them, and 
then we might attend to other heathens at home. But as long as 
they are here let us, as they crouch at our feet, take them by the 
hand and raise them up, “ let us awaken within them self-respect, 
employ them in all service, agricultural and domestic, for which 
they show adaptation ; let us give them a Bible and teach them 
how to read it; the colored man needs, in his depressed condition, 
the white man; he needs his fostering care, the guidance of his 
superior intelligence, and the protection of his laws. God shows 
us the path of rectitude, and it is the path of prosperity and joy.” 

The negro race of this country are like the unhappy Britains who, 
when overrun by northern barbarians, appealed to Home, in terms 
equally piteous: “ The barbarians,” said they, “ on the one hand, 
chase us into the sea—the sea, on the other, throws us back upon 


the barbarians, and we have only the hard choice left us of perish¬ 
ing by the sword or by the waves.” 

To those who believe in the construction of the constitution of 
the United States as laid down by Chief Justice Taney in the Dred 
Scott Decision, and which has been made since the constitution of 
this State was formed—an additional reason will immediately pre¬ 
sent itself why such a provision should not be incorporated in the 
constitution, and that is that such a provision may come in conflict 
with the constitution of the United States which declares all slaves 
property, and every man has got a right, you know, to do with his 
property as he sees fit. The words negro or mulatto may include 
slaves and therefore, a man living in Kentucky would have a right 
to bring his slaves over into Illinois, being property, could do with 
them as he pleases. The court says: 

“ The right of property in a slave is distinctly and expressly 
affirmed in the constitution. The right to traffic in it, like an or¬ 
dinary article of merchandise and property, was guaranteed to the 
citizens of the United States, in every State that might desire it, 
for twenty years. And the government, in express terms, is pledg¬ 
ed to protect it in all future time, if the slave escapes from his 
owner. This is done in plain words—too plain to be misunderstood 
—and no word can be found in the constitution which gives Con¬ 
gress a greater power over slave property, or which entitles proper¬ 
ty of that kind to less protection than property of any other de¬ 
scription. 

The only power conferred is the power, coupled with the duty of 
guarding and protecting the owner in his rights.”—See p. 451-2 of 
19 Howard Reports, (Dred Scott Decision). 

Justice Catron, p. 427 of 19 Howard, says: “Congress cannot 
do indirectly what the constitution prohibits directly. If the slave 
holder is prohibited from going to the territory with his slaves, 
who are parts of his family in name and in fact, it will follow that 
men, owning lawful property in their own States, carrying with the 
equality of their State, to enjoy the common property, may be told, 
you cannot come here with your slaves, and he will be held out at 
the border. By this subterfuge, owners of slave property to the 
amount of thousands of millions might be almost as effectually ex¬ 
cluded from removing into the territory of Louisiana north of 36 
deg. 30 min., as if the law declares that owners of slaves, as a class, 
should be excluded, even if their slaves were left behind. Just as 
well might Congress say to those of the north, you shall not intro¬ 
duce into the territory south of that line, your cattle or horses, as 
the country is already overstocked; nor shall you introduce your 
tools of trade, or machines, as the polity of Congress is to encourage 
the culture of sugar and cotton south of the line; and so to pro¬ 
vide that the northern people shall manufacture for those of the 
south, and barter for the staple articles slave labor produces. And 
thus the northern farmer and mechanic would be held out, as the 


slaveholder was for thirty years by the Missouri restriction. If 
Congress could prohibit one species of property lawfully,^ through¬ 
out Louisiana when it was acquired, and lawful in the State from 
whence it was acquired, and lawful in the State from whence it was 
brought, so Congress might exclude any or all property.” 

Now if this doctrine be correct, if it be good, true democratic 
doctrine—how are you going to discriminate between property ? 
Suppose for instance, that a slaveholder stands on the Kentucky 
shore with a hundred slaves, which are his property, and recognized 
as his property under the constitution of the United States, and 
wishes to come over into this State, and at the same time a drover 
with a hundred head of cattle stands on the Iowa shore, and 
desires to come into this State also. Now here is a slaveholder 
with his drove of slaves at his back, and here the drover with his 
hundred beeves. Are you, my good democratic friends going to 
violate the constitution of the United States and discriminate 
against property in the face and eyes of this great Dred Scott De¬ 
cision ? Hav’nt you always been saying to us republicans, that the 
slaveholders should have their rights ? Now negroes are moveable 
property, and so are cattle, sheep, and hogs. Can this convention 
pass an organic law, by which you deprive the citizen of Kentucky 
of the use of his property, if he chooses to pay us a visit—a law 
by which you hold out at the border the citizen of Kentucky, 
and let the citizen of Iowa in ? I make these suggestions in view 
of the new light which has streamed in on us from the heights of 
the supreme court. 

But I will not pursue this subject further, “ Is it not amazing 
that at a time when the rights of humanity are defined and under¬ 
stood with precision, in a country above all others fond of liberty ; 
that, in such an age and such a country , we find men, professing a 
religion, the most mild, humane, gentle, and generous, adopting 
such a principle as repugnant to humanity, as it is inconsistent with 
the Bible, and destructive to liberty.’ Every thinking honest man, 
rejects it in speculation.” Said Thomas Jefferson long years ago— 
“I tremble for my country when I reflect that God is just: that 
considering numbers, nature and natural means only, a revolution of 
the wheel of fortune—an exchange of situations is among possible 
events; that it may become probable by supernatural interference. 
The Almighty has no attribute which can take sides with us in 
such a contest. We must wait with patience the workings of an 
overruling Providence, and hope that that is preparing the deliver- 
ence of these our brethren. When the measure of their tears shall 
be full, when their groans shall have involved heaven itself in dark¬ 
ness, doubtless a God of justice will waken to their distress. No¬ 
thing is more certainly written in the book of fate, than this people 
shall be free.” 

Free, I may add, to come and go in this State—even subject to 
the law—although deprived of all other privileges. 


IS A 


Constitutional Convention a Legislature? 


SPEECH OF HON. ELLIOTT ANTHONY ,, Delegate from 
( Chicago ), Cook Co., delivered in the Constitutional Convention 
of Illinois, February 12,1862, on the passage of the following 
ordinance: 

u Be it ordained by the people of the State of Illinois, represented 
in the constitutional convention, That the following article, proposed 
as an amendment to the constitution of the United States, by a 
joint resolution of the Congress of the United States, approved 
March 2, 1861, to wit: 


ARTICLE XIII. 

“ No amendment shall be made to the constitution which will 
authorize or give Congress the power to abolish or interfere, within 
any State, with the domestic institutions thereof, including that of 
persons held to labor or service by laws of said State,” be and the 
same is hereby ratified. 

Mr. Anthony addressed the convention as follows: 


Mr. President : 

The amending of the constitution of the United States is a matter 
of no small importance at any time. The way and manner of doing 
it is clearly pointed out in the 5th article of the constitution itself, 
which is as follows : u Congress, whenever two-thirds of both houses 
shall deem it necessary, shall propose amendments to the constitu¬ 
tion : or, on the application of the Legislatures of two-thirds of the 
several States shall call a convention for proposing amendments, 
which, in either case shall be valid to all intents and purposes, as 
part of this constitution, when satisfied by the Legislatures of three- 
fourths of the several States, or by conventions in three-fourtbs 



2 


thereof, as the one or the other mode of ratification may be proposed 
by Congress ” 

So far, it has been argued in convention, that this convention 
was a legislature, within the meaning of the constitution of the 
United States, and being a legislature within the meaning of that 
constitution, we have full power to pass the ordinance introduced 
by the gentleman from Union, and thereby amend, so far as 
this State is concerned, the constitution of the United States. 
Now, sir, I for one, deny that position. I deny that this convention 
is a legislature within the meaning of the constitution of the United 
States. And in proof of that, I appeal to the history of this country, 
and I think I shall be able to show that the meaning of the term legis¬ 
lature i, as used in the constitution of the United States, is a term 
which is used, technically, to indicate the law-making power of a 
State existing under a constitution of a State , and is so used all 
through the country. Allow me to say that the framers of the con¬ 
stitution of the United States—those eminent law-givers, understood 
the difference between a convention and a legislature just as well as 
we do. They understood the English language well, and under¬ 
stood the meaning of the terms convention and legislature when 
they used them. The ordinance in question is, I find, based upon 
a joint resolution which has been discovered among the published 
laws of Congress, which passed Congress, March 21, 1861, in this 
language : 

“ Resolved , That the following article be proposed to the legisla¬ 
tures of the several States as an amendment to the constitution of 
the United States, which, when ratified by three-fourths of said 
legislatures, shall be valid to all intents and purposes as part of said 
constitution, viz.: 

Article XIII.—No amendment shall be made to the constitu¬ 
tion which will give to Congress the power to abolish or interfere, 
within any State, with the domestic institutions thereof, including 
that of persohs held to labor or service by the laws of said State.” 

As to the time, the place, and circumstances under which that 
resolution passed the Congress of the United States, I do not pro¬ 
pose to speak now. It was, however, before the great rebellion had 
commenced, and before the rebels and traitors had taken up arms to 
destroy the government, and when conciliation and compromise ruled 
the hour. It was not such a time as the present, when there is 
nothing for us to compromise but honor—and when an appeal has 
been taken from the halls of Congress to the battle-field. Times 
have changed—but still we are met with the cry of conciliation, 
and the argument is here gravely put forth that we are a legislature 


3 


—the legislature which the Congress of the United States meant 
when it said this amendment should he proposed to legislatures of 
the several States, and, when ratified by three-fourths of said 
legislatures , should be valid to all intents and purposes as part of 
said constitution/’ &c., and that it is our duty to pass this ordin¬ 
ance. The gentleman from Adams contends that we are a legisla¬ 
ture, within the meaning of the act of Congress and the constitu¬ 
tion ot the United States. The gentleman from Union, I under¬ 
stand, takes the same position, and I have here before me a grave 
and formal report from the judiciary committee of this body, in 
which they expressly decide that this convention is a legislature. 
That report reads as follows : 

“ Mr. Manning, from the committee on the judiciary, submitted 
the following report : 

“ The committee on the judiciary, to which was referred the fol¬ 
lowing resolution : 

“ ‘ Resolved , That the judiciary committee be instructed to in¬ 
quire whether the convention has the power to establish districts 
for the election of members of Congress, and report to the conven¬ 
tion.’ 

“ Have the same under consideration, and have instructed me to 
make the following report: 

“In the opinion of a majority of the committee, the convention 
has that power. The only argument which is urged against the 
existence of such a power in the convention, is that such a body is 
prohibited from exercising this power by the constitution of the 
United States. It is alleged that this prohibition is found in the 
first clause of section four, articles one, which is: ‘ The times, 
places, and manner of holding election for senators and representa¬ 
tives shall be prescribed in each State by the legislature thereof.’ 
It is urged, in argument, that a ‘ legislature ,’ techinally known as 
such is intended in this provision ; that this convention is not such 
a legislature; and that, therefore, it is prohibited from exercising 
this power. 

“ It will be seen that if this reasoning proves an express prohi¬ 
bition of power in the convention, it is founded upon the assumed 
technical signification of the word legislature , and applying this 
construction to the particular case under consideration, that the 
word legislature can only mean the General Assembly of the State 
of Illinois. Now, the word legislature, from its derivation, con¬ 
struction, and general use, is not confined, in its meaning and sig¬ 
nification, to limits so narrow. Literally, it denominates a body of 
persons having the power to lay down laws—in common accepta- 


4 


tion, to make laws. It is, then, properly applied to any body hav¬ 
ing and exercising the power of making laws. The Congress of 
the revolution was a legislature. The convention which framed the 
constitution of the United States was the greatest legislature which 
ever convened and acted in America. It made and established, by 
the subsequent approval and ratification of the States, the supreme 
law of the land—so declared to be in the constitution itself. 

“ A con vention legally assembled for the purpose , and with power 
to frame the organic law of a State , is a legislature , and not only so , 
but a legislature within the meaning of this particular provision of 
the constitution of the United States. 

Mr. SINGLETON (interrupted). Will the gentleman please 
define what a legislature is ? 

Mr. ANTHONY. If the gentleman will only have patience, I 
will not only define my position, but will not detain him but a very 
few minutes. 

Mr. SINGLETON. I am not particular about the time; all I 
want is to get the definition. 

Mr. ANTHONY. The answer will be given before I close, and 
I choose “ to proceed in my own way.” Here then, we have not 
only the distinguished gentleman from Adams, (Mr. Singleton), 
the distinguished gentleman from Union, (the President of the con¬ 
vention) who holds to the view that we are a legislature, but we 
have a formal adjudication of this subject, by eight out of nine of the 
judiciary committee, who not only express their own individual 
views, but cite us precedents and furnish us authority to prove it. 
They appeal to history for proof, and tell us that “the Congress of 
the revolution was a legislature”—and that the convention which 
framed the constitution of the United States was the greatest legis¬ 
lature which ever convened and acted in America, ergo , that we are 
a legislature—perhaps, the next greatest that ever assembled on this 
continent, and can not only apportion the State for Congress, but 
can amend the constitution of the United States. The gentleman 
from Marion, (Mr. O’Melveny), however, not only goes ahead of 
this, but leads the column. He takes the ground that we are not 
only a legislature, but that we possess supreme legislative , judicial , 
and executive powers. That is certainly going the whole animal, 
without any reservation. In the few minutes which I shall occupy 
here, I propose to examine this single point: “ Is this convention a 
legislature within the the meaning of the constitution of the United 
States, and the act of Congress ?” 


5 


Mr. SINGrLETON. I ask whether the gentleman does not in¬ 
tend to misunderstand me. I do not remember ever to have uttered 
the sentiment that this convention possessed the powers of the ex¬ 
ecutive and judicial departments; but I have said, upon all occa¬ 
sions, that it did possesss the surpeme law-making power of this 
State. 

Mr. ANTHONY. I referred particularly to the gentleman 
from Marion, but I think that the gentleman’s language is suscep¬ 
tible of almost as extreme doctrine. I have before me a speech of 
the honorable gentleman on yesterday, which, I think, by a fair 
construction, is susceptible of what I have stated. 

Mr. SINGrLETON. Will the gentleman read if he pleases ? 

Mr. ANTHONY. I will. The point in the gentleman’s speech 
which I refer to is in regard to this body being “ supreme and un¬ 
restrained/’ The language is very strong—“ supreme and unre¬ 
strained” has a world-wide meaning. In reply to my colleague, the 
gentleman said: 

u Mr. President, this is the legislature. This body is what all 
the elementary writers on law denominate the supreme law-making 
power ot the State. The convention is the legislature, because it 
is the supreme law-making power of the State; and no other body 
can be properly denominated a legislature, except the supreme law¬ 
making power of the State. I am astonished to hear a gentleman, 
with the knowledge and experience of the honorable delegate from 
Cook, express himself doubtfully as to this convention possessing 
legislative powers. What are we here for ? What powers are we 
exercising? If we make laws, are we not a legislative body ? And 
are not our laws obligatory and binding above other laws and other 
legislation of the law-making power? Then, what do you call this 
body, if it is not a legislature? What do you call this body, if it 
is not a law-making power in the strictest sense of the word ? 
Then, sir, this is the proper tribunal—this body—the supreme law¬ 
making power of the State—is that to whieh the constitution ot the 
United States refers when it speaks of the legislature—the body 
representing the supreme and unrestrained power of the people. 
Here we are assembled straight from the people, the proper power 
to decide all questions of this sort.” 

Mr. ANTHONY. When the gentleman claims supreme legisla¬ 
tive power, he claims it in language capable of the same construc¬ 
tion as the language used by the gentleman from Marion the other 
day. 


6 


Mr. SINGLETON. The gentleman has done me the honor to 
read that portion of my remarks in relation to the powers of this 
convention, and those particularly directed to the question of what 
constitutes a legislature. In those remarks I am reported to have 
said that unless this was a legislature, Illinois never had one by 
that name. I now ask the gentleman, if Illinois ever had such a 
department by that name ? 

Mr. ANTHONY. Certainly we have, and always had. The 
general assembly is the legislature. It is the legislative depart¬ 
ment of the State, and was made so by the constitution of 1818 and 
1847. 1 was not replying particularly to the gentleman from Adams, 
but I was speaking generally upon this subject. I do not desire to 
go into a personal argument upon this matter. I wish only to say 
that, in my judgment, when any gentleman assumes that this con¬ 
vention is the supreme legislative, executive, and judicial power, 
they are assuming powers which are utterly antagonistic to the theory 
of American government. If gentlemen will refer to Jefferson’s 
Notes on Virginia, they will find that the language used upon this 
subject is this : “ All the powers of government, legislative, execu¬ 
tive and judiciary, result to the legislative body. The concen¬ 
trating these in the same hands is precisely the definition of des¬ 
potic government. It will be no alleviation that these powers will 
be exercised by a plurality of hands, and not by a single one. One 
hundred and seventy-three despots would surely be as oppressive as 
one. Let those who doubt it turn their eyes on the Republic of 
Venice. As little will it avail us, that they are chosen by ourselves. 
An elective despotism was not the government we fought for; but one 
which should not only be founded on free principles, but 'in which 
the powers of government should be so divided and balanced among 
several bodies of magistracy, as that no one could transcend their 
legal limits without being effectually checked and restrained by 
others. For this reason, that convention which passed the ordin¬ 
ance of government, laid its foundations on this basis : that the 
legislative, executive, and judiciary departments should be separate 
and distinct , so that no person should exercise the powers of more 
than one of them at the same time.” 

Mr. O’MELVENY. I never contended that this body was su¬ 
preme in any other sense than as subject to the constitution of the 
United States. 

Mr. ANTHONY. I understood that gentleman in his place, a 
few days ago, to claim that this convention had supreme legislative, 


7 


executive, and judicial power; thereupon, the gentleman from St. 
Clair arose and asked him if we could grant divorces. My recol¬ 
lection was that he said we could. 

Mr. O’MELVENY. I do believe that this convention has su¬ 
preme power, subject to the Federal constitution in each one of these 
departments of the government. That is my individual opinion. 

Mr. ANTHONY. Then I do not misstate the gentleman. I 
pronounce such doctrines as those despotism. 

Montesquieu says, “ When the legislative and executive powers 
are united in the same person or body, there can be no liberty, be¬ 
cause apprehensions may arise lest the same monarch or senate 
should enact tyrannical laws to execute them in a tyrannical man¬ 
ner. 

Were the power of judging joined with the legislative, the life 
and liberty of the subject would be exposed to arbitrary control, 
for the Judge would then be the legislator. Were it joined to 
the executive power the Judge might behave with with all the 
violence of an oppressor.” 

James Madison, in No. 53 of the Federalist, says, “ Wherever 
the supreme power of legislation has resided, has been supposed to 
reside also a full power to change the form of the government. 
Even in Great Britain, where the principles of political and civil 
liberty have been most discussed and where we hear most of the 
rights of the constitution, it is maintained that the authority of 
parliament is transcendent and uncontrollable, as well with regard 
to the constitution as the ordinary objects of legislative provision. 
They have accordingly in several instances, actually changed, by 
legislative acts, some of the most fundamental articles of govern¬ 
ment. They have, in particular, on several occasions, changed the 
period of election, and on the last occasion, not only introduced 
septennial in the place of triennial elections, but, by the same act, 
confined themselves in place four years beyond the term for which 
they were elected by the people. An attention to these dangerous 
practices has produced a very natural alarm in the votaries of free 
government , of which frequency of elections is the corner stone, and 
has led them to seek for more security to liberty against the danger 
to which it is exposed.” We then are a Parliament; we have 
soared above the present constitution; like the Ephori of Sparta, the 
Tribunes of Rome and the Cozmi of Crete; we represent the peo¬ 
ple in their plenipotentiary capacity and are clothed with plenipo¬ 
tentiary powers. 

The accumulation of all powers, legislative, executive and judi- 


8 


ciary, in the same hands, whether of one, a few, or many, and 
whether hereditary, self appointed, or elective, may justly be pro¬ 
nounced the very definition of tyrany. Nothing short of this can 
be supreme power. If we are the collected, concentrated essence 
and power of the people of the State of Illinois, we can dis¬ 
place and appoint the person whom we now style the Governor, 
in a moment. We can displace and appoint Judges of the Supreme 
Court, we can direct the soldiers in camp, we stand at the head of 
the army and navy, we wield the wand of a magician; within the 
circuit of the defined boundaries of the State of Illinois we wheel 
and soar. The American Eagle is neither our rival or competitor. 

1st. But it is said, the Congress of the Revolution was a legislature. 
Now, I would, for one, like to know what kind of a legislature the 
Congress of the revolution was. It was a mere council of delegates, 
elected, some by the people in popular conventions, some by the 
legislatures of the States, and some were appointed. They met, by 
common understanding, on the 5th of September, 1774. Peyton 
Randolph, of Virginia, was chosen President, .and Charles Thomp¬ 
son, of Pennsylvania, elected Secretary. As soon as the choice of 
officers had taken place, the method of voting presented itself, and 
a consideration of their power took place. 

In these circumstances, the opinion was boldly advanced by Pat¬ 
rick Henry, that the colonial governments were at an end—that 
America was thrown into one mass, and was in a state of nature— 
and consequently that the people ought to be considered as repre¬ 
sented in Congress according to their numbers, by the delegations 
actually present. 

Mr. Rutledge, among others, said : “ We have no legal authority* 
and obedience to our determination will only follow the reasonable¬ 
ness, the apparent utility and necessity of the measures we adopt- 
We have no coercive or legislative authority. Our constituents 
are bound only in honor to observe our determinations.”—(See 2 
vol., Life and Works of John Adams ; History of the Constitution 
of the United States, by Curtis, vol. 1, p. 15 and 16 ; Life of Pat¬ 
rick Henry, p. 106) ;—and this view was at once adopted. The 
instructions given to the various delegates were quite as extensive 
and comprehensive as our instructions.—(See p. 18, note 1, of vol. 
Curtis’s History of the Constitution. 

This Congress sat from the 5th of September until the 26th of 
October, 1774. They then adjourned to meet at Philadelphia on 
the 10th of May, 1 1 i 5. The delegates to this Congress were 
chosen the same as the first, and sat August 1st, and then took a 
recess until September 5th. Civil war had then commenced and 


9 


blood had been shed. The battle of Lexington had then been 
fought, and the whole Boston harbor had been blockaded, and her 
cape land was aroused—the delegates were fired with indignation— 
the whole country was aroused, and nothing could stand before the 
storm. It was then that this Congress assumed revolutionary pow¬ 
ers, and commenced a revolutionary government. Conventions were 
held in every town and city throughout the land, and word was 
sent to these delegates to consult together and prepare for a common 
defence. Massachusetts troops were in the field—it was a time 
such as was then unknown to history—wrongs, outrages, and mur¬ 
der was the the daily story told. On the 15th of June, 1775, the 
delegates in Congress elected George Washington commander 
in-chief of the forces then in the field resisting the British oppres¬ 
sors—and from this on until the Declaration of Independence—you 
all know the story by heart—the States, impelled by a common 
danger, and by the very necessity of the circumstances which sur¬ 
rounded them, founded a league in their corporative capacities, and 
agreed to do all that was required of them for their common de¬ 
fense and to promote the general welfare. 

The Congress of the Revolution was not, therefore, a legislature 
—but all its functions were those of a revolutionary government. 
Its recommendations and its orders were complied with and execut¬ 
ed by provincial legislature—by conventions and local committees in 
the States—but it was all a voluntary thing. Public opinion was 
then just as imperious as any law—the traitors were driven out, the 
patriots remained. 

The Congress was no more a legislature than a democratic or re¬ 
public national convention of the present time would be. 

The confederation was formed in March, 1781, but was a mere 
league of Federal alliance between the independent and sovereign 
States, for certain purpose of mutual aid. So far as it could be 
called a government, it was a government for the States in their 
corporate capacities, with no power to reach individuals so that, if 
its requirements were disregarded, compulsion could only be di¬ 
rected, if against anybody, against the delinquent member of the 
association itself. (3 Curtis, p. 16). It did not possess the char¬ 
acteristics of a legislature in its true and technical sense and never 
did. Its great, chief and leading feature was the repelling foreign 
enemies, and resistance to foreign dominination. It never sought 
to regulate and control the internal affairs of the State. 

2d. The convention which met at Philadelphia on the 14th day of 
May, 1787, and which framed the constitution of the United States, 


10 


was not a legislature, in its true and legal signification. It was a 
great council of the nation which came together for the purpose of 
laying the foundation of civil government, firm and eternal through¬ 
out the land—and of establishing a great organic law to control the 
nation. The delegates who composed that mighty council were not 
invested with any legislative power whatever—they neither passed 
or enacted a single law, or even assumed to do so, and there cannot 
be found on the page of history, or upon a single record or memo¬ 
rial that they left behind them any evidence that they ever thought 
they had any such power. What they did was to devise and frame 
an organic law to be submitted, first to Congress, and by Congress 
to the people of the States for their ratification. 

Says Curtis in his History of the Constitution, vol. 2, p. 29 : 

“ The convention had confessedly no power to enact or establish 
anything. It was a representative body clothed with authority, to 
agree upon a system of government to be recommended to the adop¬ 
tion of their constituents. The constituents were twelve of the 
thirteen States of the confederacy, each having an equal vote in the 
proceedings ; but neither the assent nor the dissent of a State, in 
the convention, for the whole system, or to any part of it, bound 
the people of that State to receive or to reject it when it should 
come before them.” 

Now the report of the majority of the committee, to which I have 
referred, decides that the constitution does not mean by the term legis¬ 
lature, the general assembly of a State but any law making power, and 
begging the whole question from beginning to end, decides that the 
convention is a supreme law making power. Now what I assume is, 
just wliat the constitution says, that every State has a legislature —a 
law making power—technically known by that name. The history of 
this country shows that from the very earliest times the colonies had 
legislatures which enacted laws for the government of the people, 
and that it was among the very causes which led to the revolt— 
that their local legislatures were controlled by the British govern¬ 
ment without regard to their interests. 

They were also perfectly familiar with conventions, and knew 
their exact scope and purport. The colonies were accustomed to 
meet each other in delegated conventions, to consult together for 
their safety, and records of these conventions are still preserved, 
showing such conventions of the colonies of Massachusetts, Ply¬ 
mouth, Connecticut, and New Haven, as early as 1643. In 1722, 
a congress of governors was held at Albany, N. Y., and a league of 
defense formed. And in 1754 commissioners from New Hamp¬ 
shire, Massachusetts, Bhode Island, Connecticut, New York, Penn- 


11 


sylvania and Maryland, was called at the same place to take into 
consideration the best means of defending America against the 
French, in which a grand union of the colonies was resolved upon. 
Committees of correspondence were established, and when the 
Congress of 1774 was called, the people had become perfectly ac¬ 
quainted with the mode of proceeding in deliberative assemblages. 
Bancroft in his History of the American Revolution, volume 7, page 
35, gives an account of one of these meetings, by which it appears 
that the whole country was thoroughly organized into committees 
and conventions. 

The political organizations of the States have been classed by 
jurists into provincial, proprietory, and charter governments. 

New Hampshire, New Jersey, Virginia, the two Carolinas and 
Georgia, were provinces, and had no constitutions or fundamental 
laws but the commissions of the governors. There was, however, 
always a council , a house of representatives, which constituted their 
provincial legislature. 

Maryland, Pennsylvania and Delaware, were proprietary govern¬ 
ments, in which the subordinate powers of legislation and govern¬ 
ment were granted to individuals called proprietaries, and authoriz¬ 
ed them to summon legislative assemblies. 

The charter governments were Massachusetts, Rhode Island and 
Connecticut, in which there were regular legislatures. 

3d. “ The statements which have now been made,” says Curtis in 
his History of the Constitution, “are sufficient to remind the reader of 
the important fact, that, at commencement of the revolution, there 
existed , and had long existed , in all the colonies, local legislatures, 
one branch of which was composed of representatives chosen direct¬ 
ly by the people accustomed to the transaction of public business, 
and being, in fact, the real organ of the popular will. These bodies, 
by virtue of their relation to the people were, in many instances, 
the bodies which took the initiatory step for the organization of the 
first national or continental Congress, when it became necessary for 
the colonies to unite in the common purpose of resistance to the 
mother country.” • (See Curtis’s History of the Constitution, p. 7.) 

If American history proves anything, it proves that when the 
constitution of this country was framed, that the legislature of 
States was well known and understood, and that when the word 
legislature is used, it never meant conventions called to frame con¬ 
stitutions. (See further, Curtis’s History of the Constitution, page 
257; Eliott’s Debates, vol. 5, p. 402. 


12 


4. Again, a State without a legislature would not be republican in 
form, such as is guaranteed to it by the constitution, and no transi¬ 
tory convention, called for the purpose of framing a fundamental 
law for the people can by any fair reasoning, be substituted 
for it. 

Curtis, volume 2, page 470, says : 

“ The constitution of the United States assumes, in so many of 
its provisions, that the States will possess organized governments in 
which legislative , executive and judicial departments will he known 
and established that it must be taken for granted that the 
existence of such agents of the public will, is a necessary feature of 
a State government within the meaning of this clause. No State 
could participate in the government of the Union without, at least, 
two or three agents, namely—a legislature and an executive ; for the 
people of a State, acting in their primary capacity, could not appoint 
a Senator of the United States, nor fill a vacancy in the office of 
Senator, nor appoint electors of the President of the United States, 
without th q previous designation, by a legislature of the mode in 
which such electors were to be chosen ; nor apply to the government 
of the United States to protect them against domestic violence, 
through any other agent than the legislature or the executive of the 
State. It is manifest, therefore, that each State must have a gov¬ 
ernment containing at least three distinct departments; and whether 
this government is organized periodically under laws perpetually re¬ 
enacted, and subject to perpetual changes, without reference to 
forms or understanding, and fundamental laws, changeable only in 
a prescribed form, and being so far what is called a constitution, it 
is apparent that there must be a form of government possessed of 
these distinct agencies.” 

The existence and operation of a prescribed method of changing 
particular features of a government, mark the line between amend¬ 
ment and revolution, and whenever or wherever any convention of 
delegates get together for the purpose of altering, amending and re¬ 
vising a constitution, and under that power of attorney, seize upon 
the powers of government, and,< setting aside the authority of exist¬ 
ing government, proceed to exercise legislative powers, it is nothing 
more or less than a revolution —it is a fraud upon the people, 
and would be the duty of the government to interfere and put down 
such a usurpation with force and with arms. 

Now, then, if this doctrine be correct, and if every State govern¬ 
ment must, in order to be republican in form , consist of three dis¬ 
tinct bodies of magestracy, to wit: the executive, judicial, and leg¬ 
islative—in what condition are we? If all of these powers are 
concentrated in us, what kind of a government is this? For God 

MB 1O3. 


13 


sake, what has become of the State of Illinois? What has become 
of the Governor, the chief executive, and the executive department. 
What has become of the Judges of the Supreme Court—of Judge 
Caton, Breese and Walker? What has become of the legislature? 
Have they all abdicated—ha e they fled—and are we disorganized ? 
Have we gone back into a state of nature, and are we here in our 
'primary capacity; or have we usurped all the powers of the 
people, and set up 2 i provisional government ? Gentlemen discourse 
of sovereign and supreme powers with as much nonchalance and 
unconcern as they would—speak of coughs and colds, or fogs and 
rains. 

Sir, such sentiments and such doctrines are utterly antagonistic 
to the whole theory of American government, on this continent. 
They might do well enough in South Carolina, and in the rebellious 
States of the Union—but it will never do here. 

We are not a legislature within the meaning of the constitution 
of the United States, and we do not possess sovereign and supreme 
powers, and we have no power to pass the ordinance now under con¬ 
sideration at all. 

The majority here have the physical power to do it, I admit; but 
in doing it, you trample under foot the teachings of American his¬ 
tory, and of common sense, and forswear the constitution itself. 

















































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